Written evidence from Victoria Beel, Principal Lawyer at Slater and Gordon (NLR0024)
What is the impact of the current cost of litigation on the financial sustainability of the NHS and the provision of patient care?
The cost of litigation is directly linked to patient harm. The more patient harm, the more litigation. The underlying issues of patient harm needs to be addressed. Changes to the way in which litigation is dealt with will require a review of the entire civil justice system. This was done relatively recently during the Woolf reforms of 1998. It is completely inappropriate for the government to single out changes to clinical negligence because the government pays damages to those who are injured through clinical negligence. It is a dangerous infringement on the protections behind the separation of powers.
If changes to clinical negligence litigation is justified on the basis of patient safety, the government must also hold a full consultation on changes to all litigation to prevent harm, injuries and accidents. For example why are changes to employers liability litigation not being considered to reduce accidents in the workplace.
To save money, and reduce patient harm, the government should look at staffing levels and funding. All too often incidents are blamed on low staffing levels, consultants not on site over the weekend/overnight and insufficient training and development.
What are the key changes the Government should consider as part of its review of clinical negligence litigation? In particular:
What changes should be made to the way that compensation is awarded in clinical negligence claims in order to promote learning and avoid the same problem being repeated elsewhere in the system?
It is not the way that compensation is awarded that should be considered, but rather the way in which incidents are dealt with. Changing the end result of compensation, will not prevent patient harm, they are not linked. There is no evidence that they are linked.
How can clinical negligence processes be simplified so that patients can receive redress more quickly?
This involves changes to the civil litigation. There are expeditated lists in the RCJ for specialist cases such as living mesothelioma cases. Urgency in clinical negligence cases is needed in a specific subset of cases; where there is a living claimant and causation or liability is denied. This means they cannot access interim funds desperately needed for immediate needs. This causes substantial hardship to catastrophically injured claimants.
How can collaboration between legal advisors be strengthened to encourage early and constructive engagement between parties?
There is already considerable collaboration between NHSR, their panel solicitors and specialist clinical negligence lawyers. For example the protocol between SCIL and NHSR in relation to covid. As a firm Slater and Gordon have global settlement meetings with NHRS panel firms to encourage early settlement of cases.
What role could an expanded Early Notification scheme play in improving transparency and efficiency system-wide?
It is too early to tell how effective this has been in relation to birth injury cases. A further period of trial is needed before review
The Government has reiterated its intention to extend fixed recoverable costs, which limit the amount that can be paid out to meet legal costs, to clinical negligence cases with settlements of less than £25,000. At what level should these fixed recoverable costs be set, and are there any circumstances in which they should not apply to low value clinical negligence cases?
The fixed recoverable costs should absolutely not apply to fatal cases or cases involving children, or those who lack capacity. Fatal cases in clinical negligence can be extremely complex and can involve lengthy and complex inquests. The damages in fatal cases are not linked to the complexity. If a young mother dies in exactly the same circumstances as an 19 year old woman, the damages in the former could be 1 million, whilst the damages in the latter could be £2000. That is because damages in fatal cases are not linked to the complexity of proving a case, but rather whether there are dependents. It is wrong to say that the family of a 19 year old woman, killed as a result of clinical negligence should not be entitled to standard costs and inquest representation. Because legal aid for inquests is limited to exceptional case funding (usually article 2 inquests only), the only way of recovering such costs is through a civil claim.
To what extent does the adversarial nature of the current clinical negligence system create a “blame culture” which affects medical advice and decision making?
The current system of clinical negligence does not create a blame culture. It is the way in which these incidents are dealt with by the hospital and trust that creates a blame culture. A change to the way that clinical negligence litigation is dealt with will not have an impact. They are not linked. There is no evidence that they are linked.
How important is it that any clinical negligence system encourages lesson learning and commitment to change as the result of any action?
It is important that hospitals and trusts do this but the role of the civil litigation is separate. For example the HSE reviews safety in the workplace. It is not the role of employer’s liability litigation to improve safety in the workplace.
What changes should be made to clinical negligence claims to enable a move away from a blame culture and towards a learning culture in the NHS?
See above – none. It is the underlying issues that need to be tackled.
How can the Healthcare Safety Investigation Branch work to improve short term responses to patient safety incidences and therefore reduce the number of those who are forced to pursue litigation as a means of obtaining non-financial remedies?
An early, transparent, and genuine explanation and apology may avoid the need for patients and relatives to pursue litigation. It is all too common for a Trust investigation to apologise for errors but to advise that there is no way of knowing if the outcome would have been different.
HSIB reports could be simplified and shortened to increase capacity and produce reports quicker than the current 6 month target.
What legislative changes would be required to support these changes?
Creation of specialist fast track lists for clinical negligence. This also requires funding for the Courts. Currently in our local Court the wait for a simple CCMC hearing after the defence, is over 6 months.